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08/16/83 BILLIE KINSER AND CLIFFORD (JAY) KINSER v.

August 16, 1983

BILLIE KINSER AND CLIFFORD (JAY) KINSER, RESPONDENTS,
v.
AHMED ELKADI, APPELLANT.



From the Circuit Court of Greene County; Civil Appeal; Judge James H. Keet, Jr.; Cause Retransferred

The opinion of the court was delivered by: Snyder

In this medical malpractice action, Dr. Ahmed Elkadi appealed from a jury trial judgment of the circuit court of Greene County. The Missouri Court of Appeals, Southern District, dismissed the appeal as moot. We granted appellant's motion to transfer and the case will be decided as though on original appeal. Mo. Const. Art. 5 § 10. The cause is ordered re-transferred to the Missouri Court of Appeals, Southern District, for consideration of the appeal on its merits.

This court must decide first whether the appeal should be dismissed as moot because Dr. Elkadi's insurers, Aetna Casualty and Surety Company (Aetna) and St. Paul Fire and Marine Insurance Company (St. Paul) paid to respondents the total amounts due under their respective policies. Resolution of the mootness question in turn depends upon whether Aetna's payment of a portion of the judgment in response to an execution and garnishment was voluntary, and whether we should consider the requirement of the Aetna policy that Dr. Elkadi consent in writing to any settlement, a requirement which was not brought to the attention of the Court of Appeals until after its opinion dismissing the appeal as moot was handed down.

Respondents, Mr. and Mrs. Kinser, sued Dr. Elkadi for damages arising from a bilateral aortic femoral bypass operation which appellant had performed on Mrs. Kinser. The theory of the Kinser's medical malpractice action was that the surgery was unnecessary and that appellant had failed to obtain an informed consent from Mrs. Kinser before performing the bypass operation. The jury awarded Mrs. Kinser $900,000 for her damages and Mr. Kinser $25,000 for loss of consortium. Judgment was entered accordingly.

Aetna provided Elkadi primary coverage of $100,000; St. Paul provided Elkadi with $1,000,000 excess coverage. Elkadi and St. Paul disputed whether the St. Paul policy required Elkadi to maintain $300,000 or $100,000 in primary coverage. Aetna was also contractually required to defend all lawsuits against Elkadi, and to pay all costs and expenses of the litigation and all interest accruing on any judgment entered "before has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company's liability thereon."

Aetna terminated its role in the litigation on November 13, 1980, after Elkadi had filed his notice of appeal. Although Aetna had agreed on the morning of November 13, 1980 to pay the premium for a supersedeas bond by 1:00 p.m. of that day, it did not do so. Instead, two minutes after the Kinsers had filed a writ of garnishment in aid of execution, Aetna, the garnishee, filed answers to the garnishment interrogatories. Then, just twenty minutes later, Aetna paid the garnishment amount, $130,892.27, into court and abandoned the case. Counsel for the Kinsers informed the court in oral argument that Aetna had reserved the right to a refund if the cause was reversed on appeal.

St. Paul discharged its obligation by paying the Kinsers $675,000 under a two-part contract of settlement. The first part provided for payment of $50,000 to the Kinsers in settlement of the dispute about whether St. Paul's liability coverage commenced at the $100,000 level or the $300,000 level. The second part provided for payment of $625,000 to the Kinsers in full satisfaction of that part of the judgment in excess of $300,000. St. Paul additionally agreed not to seek a refund if appellant obtained a reversal or a remand of the case.

No satisfaction of judgment was ever entered by the Kinsers but in their contract for separate settlement with St. Paul the Kinsers agreed to enter a partial satisfaction of judgment in the amount of $825,000 after resolution of the appeal.

The Kinsers filed a motion to dismiss Dr. Elkadi's appeal, which was initially denied by the Court of Appeals. The cause was argued and submitted after which the Court of Appeals rescinded its order denying the Kinsers' motion to dismiss the appeal and handed down an opinion in which the appeal was dismissed as moot.

After the appeal was dismissed, Aetna, which had remained inactive in the case after it paid the policy proceeds into court after garnishment, filed a motion for leave to: intervene for an evidentiary hearing on respondents' motion to dismiss; move for a rehearing; move for transfer to the Court of Appeals en banc; move for transfer to the Supreme Court; and file an amicus curiae brief. Dr. Elkadi filed a motion for rehearing or transfer to the Missouri Supreme Court and for an evidentiary hearing on the issues of the voluntariness of Aetna's payment and the necessity of Dr. Elkadi's consent to a settlement. An addendum to the original opinion was then filed denying all post opinion motions and allowing the dismissal of the appeal as moot to remain in effect.

Dr. Elkadi then filed his application to transfer in this court. It was granted on February 23, 1983 and the cause ordered transferred.

We have considered thoroughly the somewhat complicated procedural record of the cause in connection with the insurance policy question, the two insurance company settlements, and the post opinion pleadings in the Court of Appeals. An appellate court may receive and consider matters outside the record in order to determine whether an appeal is moot. Mudgett v. Peterson, 482 S.W.2d 472, 474 (Mo. 1972); Eicholz v. Davis, 289 S.W.2d 433, 435[1-3] (Mo. App. 1956). After consideration of the entire record, we conclude that the appeal should not have been dismissed and order the cause re-transferred to the Missouri Court of Appeals, Southern District, for consideration of the appeal on its merits.

Two issues are important in determining whether the appeal should be dismissed as moot, the most important being whether the payment of the amount due under the policy by Aetna was voluntary. The other issue is whether Dr. Elkadi's consent to Aetna's settlement was required. After reviewing the record in the light of these issues, this court concludes that Dr. Elkadi should be permitted to pursue his appeal.

The rule is that when a defendant voluntarily pays a judgment rendered against him, he may not appeal from that judgment. See Edith Inv. Co., Inc. v. Fair Drug, Inc., 617 S.W.2d 567, 569[1] (Mo. App. 1981); Leonard v. Pioneer Finance Co., 568 S.W.2d 937, 943-944 (Mo. App. 1978). The issue ...


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